Criminal Proceedings: Initiation, Complaints, and Lawsuits

Posted on Dec 15, 2024 in Law & Jurisprudence

LESSON 8: Initiation of Criminal Proceedings

General Approach

The criminal process, in its present configuration, is characterized by the existence of a judicial investigation stage directed by the examining magistrate, who is the decision-maker of initiation. This onset conveys to the magistrate the existence of a fact that may constitute a public offense. On the contrary, semi-public or private infringements can only begin the process by persons or parties that the law specifies, in the forms provided by law. This is the principle of informality and generality in setting criminis knowledge of the news, as befits the beginning of officialdom.

Complaint

As a general criterion, a complaint can encompass all forms and ways in which one merely informs the judge of an alleged criminal act. A lawsuit, governed by the fulfillment of certain formalities, means the formal request to initiate the procedure and that it has the party who exercises it.

Nature

  1. In semi-public crimes or offenses, it is the result of a decision of the injured or offended party (or who represents or replaces them) to start criminal proceedings. It is the exercise of a right or power.
  2. It may be that in addition to the news criminis, expressed or implied, ancillary applications are contained in the complaint (for the continuation of the process, the adoption of precautionary measures).
  3. The offended or harmed party may be involved in the mere allegation display part (761.2 LECro: without complaint), so in this case, it also has significance as an act of exercise of criminal action:
    • In all prosecutions for crimes, intervention with a barrister and solicitor must be accompanied.
    • In the process of faults, the mere allegation, once admitted, makes the complainant and defendant parties that are to be summoned to court, even with the standard distinction between complainant and offended and hurt (Articles 962.1, 967.1), one being understood as one of the members of these two groups.

Public Duty to Report Offenses

Exception: Minor or incapacitated and relatives (260, 261).

General Citizen Duty

Knowledge had (264 LECro). No expected sanction for breach.

Duty Reinforced

Practical expression of this communication: Notitia criminis by third-parties for injury or death: major quantitative data exposed by moving injured or relatives or the result of perception and deduction. Optional: Fuzzy criminis news or unreliable in many cases (or traffic accidents, for example) that lead to unequal judicial responses.

Deductions: Testimonies of other administrative or judicial proceedings, the same or a different court order, or of the judge-perceived illegal in other proceedings.

It is self-denunciation (a budget for the attenuation of Art. 21.5 CP).

Capacity

Foreign legal persons, minors, disabled individuals, or any entity with or without legal personality can do it.

Liability

It simply is not telling the truth in the narration of facts. Section 456.1 PC: reckless disregard for truth or knowledge of its falsity.

Form

265 and 266: Informal (verbal or written hearing, the document signed by the complainant, for special-agent is meant for this crime and respect of the accused person, or in person).

Where to Submit

264: Court, MF, security and police forces. To anyone, irrespective of territorial jurisdiction or otherwise.

Certificate

A species of the complaint. (art. 297 LECro).

It consists, as any complaint, which was brought to a judicial authority of an apparently criminal act, which, in turn, may have been.

As a general guideline, art. 282 sets the duty of the police for public crimes to practice, within its powers, the necessary steps to verify and find the criminals, and collect all the effects, instruments, or evidence of the crime of disappearance of which there is danger, making it available to the judicial authority. According to art. 292 in the crowded be specified as precisely the facts ascertained by them, inserting statements and reports received and scoring all the circumstances which could be observed and evidence or crime.

By way of example, mention that the summary procedure specifically for the art. 770 provides that the Police will immediately attend the scene and take the following steps:

  1. They will require the presence of any physician or medical personnel as may be there to provide, if necessary, appropriate aid to the injured.
  2. They will be attached to record minutes of photographs or any other magnetic medium or playback of the movie when relevant to the clarification of the offense and there is a risk of missing its sources of evidence.
  3. They will gather and safeguard in all cases the effects, instruments, or evidence of the crime of disappearance of which there is danger, to make them available to the judicial authority.
  4. If the death of any person has resulted and the corpse is found in the street, on the railroad, or transit elsewhere, it will be moved to the next place that is most appropriate under the circumstances, restoring interrupted service and realizing immediately to the judicial authority. In situations where there are exceptional for such a measure of urgency, Summarizes the position of the deceased previously, obtaining photographs and reporting on the exact location where it occupied.
  5. They will take personal data and addresses of persons who are in the place where the fact was committed, and any other information that will help their identification and location, such as normal place of work, telephone or mobile number, fax number, or email address.
  6. They will intervene, if deemed necessary, the vehicle and retain the registration certificate thereof, and the driving license of the person who is responsible for the event.

They will also meet the reporting duties of the injured parties and defendants Art. 771 LECro.

Opening of Office

In cases of anonymous complaints or comparable circumstances of extra-knowledge (media, knowledge in another process, direct perception) by the competent Magistrate acts constituting a criminal offense prosecutable ex officio: Lawful opening, as indicated notitia criminis.

Advised caution before the charge, as there are no guarantees of falsely reporting criminal or official source of news.

In these cases, it would be more consistent to view the prosecution, not to see the instructor as a provocative statement, in avoidance of suspected or recusal because the complainant (219.7 LOPJ) or lack of impartiality.

Lawsuit

It is, as the complaint, which was brought from news criminis. It also implies a request to be taken by the prosecution in criminal proceedings.

Finally, formal exercise involves criminal action (art. 101 LECro). Needs to be tempered if the criminal action is the exercise of a claim for criminal conviction for action jus puniendi is only procedurally appropriate for you exercise it jus puniendi the indictments, which delimits the trial by judge.

The lawsuit is a request to open the research process which will end if the exercise of power of naming and expression of will that is to bring prosecution, notwithstanding the right to withdraw the complaint. This is the way in the research phase of this exercise takes criminal action, notwithstanding that the injured can also carry it out without complaint.

Shape

277 LECro The complaint was submitted by Attorney provided with sufficient power and signed by Letrado.

  1. The judge or court before whom present.
  2. The name and neighborhood of querellante.
  3. The name and neighborhood of the querellado. If these circumstances are ignored, it shall make the designation of the respondent by the signs that might give better conocer.
  4. The circumstances of the relationship as an expression of location, year, month, day, and time to run, if supieren.
  5. Expression of the steps that must be performed to check the hecho.
  6. The request to admit the complaint, the proceedings are carried out indicated in the previous issue, proceed to the arrest and detention of the suspect or to require bail bond, and remember the seizure of their property in the amount required in cases where this proceda.
  7. The signature of the complainant or another person at his request if we did not or can not sign when the attorney does not have special power to make the lawsuit.

Presentation of the Complaint

Before the competent authority, territorial and objectively (272).

It is incompetent to the nearest police or to ask diigencias to prevention (273 LECro) who intends to sue for it is a way of complaint, but it would be extensible.

Abandonment

Own presentation to the complaint: It is actually a withdrawal of prosecution, which is not waivable: It is derived from the public and citizenship = right of a political nature.

274 and 276. At any time, no person tacit successors after the death of the complainant within thirty days of its subpoena; tacit inactivity ten days having been asked to hand in the case of private crimes.

The effects of neglect are varied:

  • In private, being only possible accusation: the proceedings.
  • In public and parastatal agencies, the process remains equally, unless there is forgiveness of the offended that extinguishes criminal liability in cases envisaged by law (ss 201, 267 CP and semi faults).

Aspects Common to Complaint and Lawsuit

Admission to the Pipeline

Report: art. 269 LECro: The judge shall refrain from any procedure only when no status of crime or the complaint is manifestly false.

Complaint: 313 dismissed in the same way the complaint when the facts relied upon do not constitute crimes.

Or when not to be competent to instruct the purpose of the summary: Continuation of the requirement of bringing before the court competente.

In both cases, the mere possibility of a crime, no requirement that through the lawsuit or documentation provided the facts are proven, are considered credible, or you can check.

The reference in Art. 269 LECro that the complaint is patently false is applicable to the complaint, but always with a very restrictive interpretation. Discard absurd or impossible and clearly not criminal, only. However, there are interpretations that are softeners, usually when it concerns flasks, require credible evidence and sound and not a vague and general suspicion, but the interpretation is not constitutionally suited to realize the right to action criminal and effective remedy.

Such an admission of a complaint involves the agreement to initiate the proceedings, by order, and if they are targeted against a specific person, imply that he has been granted the status of the accused (art. 118): Getting your knowledge of the facts alleged against him, respect his right to defense pre-trial and his call to testify as a defendant (775 with 779.1.4).

The inadmissibility must be founded, is remedied by reform and appeals, and must be notified to the injured, although not shown as part (art. 779.1.1 ยช LECro), which can make themselves after such notification and appeal.